[1] In this petition for judicial review the petitioner, who is a former inspector with Grampian Police, seeks the reduction of two decisions made in connection with his claim for a pension under the Police Pensions Regulations 1987. The first is in the form of a certificate dated 21 May 1999 granted by Dr Barclay Brown, as a duly qualified medical practitioner in terms of Regulation H1(2) of the Police Pensions Regulations, certifying that the petitioner's permanent disability to perform the normal duties of a police officer was not the result of an injury received in the execution of his duty. The second is a decision dated 7 December 1999 of Dr George Dodds, a consultant psychiatrist, as a medical referee in terms of Regulation H2(2) of the Regulations refusing the petitioner's appeal against the decision of Dr Brown as set out in his certificate. The respondent is the Chief Constable of Grampian Police.

[2] Section 1(1) of the Police Pensions Act 1976 provided for the making of Regulations by the Secretary of State as to the pensions to be paid to members of police forces. Section 1(2) required such Regulations to provide for the payment of pensions to persons who ceased to be members of a police force by reason of infirmity of mind or body and/or by reason of injury received in the execution of their duty. Section 6(1) provided that the Regulations should make provision as to the court or other person by whom appeals should be heard and determined in the case of any person aggrieved by the refusal of the police authority to admit a claim to receive a pension or a larger pension than that granted. Section 6(3) provided that the Regulations might provide for the reference of any matter prescribed, by the police authority or by the court, to a medical practitioner, whose decision would be final.

[3] The Regulations made pursuant to the Act are the Police Pensions Regulations 1987. The following Regulations apply to this case:

[4] The background to this case is that the petitioner, while serving with the Scottish Regional Crime Squad, made a report alleging corruption on the part of other officers. This, and other factors, led to the holding of an external enquiry. Following on that enquiry no criminal proceedings were instituted against any officer. The petitioner was subsequently made the subject of disciplinary charges and in December 1997 was suspended from duty. The charges were later dropped but, while they were pending, the petitioner's mental health deteriorated. He was referred, in terms of Regulation H1.(2), to the force medical officer, Dr Monika Watt, who, on 4 August 1998, certified that he was permanently disabled due to "mental ill health" from performing the ordinary duties of a member of the police force.

[5] The respondent decided that the petitioner should retire on the ground of permanent disability as certified by Dr Watt with effect from 31 August 1998. The petitioner intimated that he wished to claim a gratuity and an injury pension in terms of Regulation B4, on the basis that he was permanently disabled as a result of an injury received without his own default in the execution of his duty. Initially, the respondent refused to consider the claim. The petitioner appealed this refusal to the sheriff. Before the determination of the appeal the respondent agreed to refer to a duly qualified medical practitioner selected by him the question whether the petitioner's disablement was the result of an injury received in the execution of his duty. In doing so the respondent belatedly agreed to proceed in terms of Regulation H1(2)(c) and (d). The qualified medical practitioner selected was Dr Barclay Brown. Dr Brown gave his decision answering the question referred to him in the negative in the certificate dated 21 May 1999.

[6] The petitioner was examined by Dr Brown on 26 March 1999. In his pleadings the petitioner avers that the examination lasted less than 30 minutes, and was largely taken up with a thorough physical examination, at the conclusion of which Dr Brown informed him that he considered him to be fit and healthy and was at a loss to understand why he was not still in the police. The petitioner further avers that at the hearing of the appeal before Dr Dodds, Dr Brown indicated that he had not been aware at the time of the examination that he should have been conducting a psychiatric examination, that he had not considered the petitioner's mental health, and that he could not address the question of whether the petitioner's illness had been caused by his work as a police officer as he could find nothing wrong with him. The respondent's answer to these averments on record is "not known and not admitted", but before me his counsel conceded that these matters were within his knowledge and that his position should be taken to be one of admitting the averments. This, along with the failure to inform Dr Brown of the ground on which the petitioner had been required to retire, and the initial refusal to refer to a selected medical practitioner the petitioner's claim that his illness had been caused by injury received in the execution of his duty, reflects little credit on the respondent's conduct of this case.

[7] The petitioner appealed against Dr Brown's decision in terms of Regulation H2(2) and the respondent notified the Secretary of State accordingly. The Secretary of State appointed Dr George Dodds as a medical referee. Dr Dodds held a hearing on 24 November 1999 and issued his decision refusing the appeal on 7 December 1999. Present at the hearing were the petitioner and his wife, Dr Henderson a psychiatrist who had examined the petitioner at the request of his agents, and Dr Brown. The decision took the form of a lengthy report which summarised the submissions of the parties and noted that the police written evidence disagreed with many of the points raised by the petitioner. These disagreements were not specified. The medical evidence provided to the medical referee was then reviewed and the report continued as follows:

[8] In moving for the reduction of Dr Brown's certificate, counsel for the petitioner submitted that he had failed to apply his mind properly to the question posed in paragraph (c) of Regulation H1(2). His duty was to determine whether "the disablement" was the result of an injury received in the execution of the petitioner's duty. The disablement in question was the disablement on the ground of which the petitioner had been required to retire by the police authority. That disablement was "mental ill health" as certified by Dr Watt. Since Dr Brown had not been informed of the ground on which the petitioner had been required to retire and had only subjected the petitioner to a physical examination, he had failed to apply his mind to the question whether the petitioner's disablement was the result of an injury received in the execution of his duty. For that reason his certificate should be reduced.

[9] In moving for the reduction of the medical referee's decision, counsel went on to argue that it was not possible for the medical referee to carry out his duty under Regulation H2(2) and (3) if the certificate of the selected medical practitioner was vitiated by his failure to apply his mind to the correct question. The medical referee's decision required to relate only to the questions considered by the selected medical practitioner. Where the selected medical practitioner's certificate was vitiated, it was not open the medical referee to carry out the selected medical practitioner's task for him and to make the appropriate decision. The petitioner had been deprived of his right to have the selected medical practitioner determine the question contained in paragraph (c) of Regulation H1 and of his right to appeal in accordance with the provisions of Regulation H2. In those circumstances, the decision of the medical referee should also be reduced.

[10] Counsel argued further that the medical referee had misdirected himself in two ways. Firstly, he had misdirected himself in rejecting the conclusions reached in the psychiatric reports placed before him on the ground that they proceeded upon the petitioner's version of events only. His criticism was that the conclusions were too confidently stated, but he did not exclude the possibility that they were correct. There was no alternative version of events before him, since the respondent, who was not represented at the hearing had taken no steps to provide him, or Dr Brown, with one. At the same time, he accepted that the petitioner was under stress in 1995 and 1996 as a result of work circumstances, and considered that among the other factors contributing to his condition were long work hours, but he regarded these factors as negativing, rather than supporting, the proposition that the petitioner's illness was the result of an injury received in the execution of duty. That was clearly wrong.

[11] Secondly, the medical referee had misdirected himself in proceeding on the view that before a disablement could be treated as the result of an injury received in the execution of duty, there had to be some default or failure or deliberate or vindictive action (such as unjustified suspension) on the part of the employer, which could reasonably be expected to have an adverse effect on the petitioner.

[12] Responding to the petitioner's submissions counsel for the respondent did not oppose the reduction of the medical referee's decision on the merits, but submitted that decree of reduction could not be pronounced unless the petition had been properly served. The petition had been served on the Chief Constable as respondent, but the medical referee had been cited only as an interested party. In similar cases in England the medical referee was commonly cited as a respondent. A party cited as a respondent might be made liable in expenses if the petitioner was successful on the merits, whether he entered appearance or not. The same would not apply to parties cited as interested parties. Since service of the petition had not been affected on the medical referee it was incompetent to reduce his decision. If, contrary to his submission, the petition had been validly served, the court could proceed to reduce the medical referee's decision.

[13] Counsel for the respondent went on to submit that Dr Brown's certificate should not be reduced because the Regulations provided for an appeal against it and an appeal had been taken. The normal rule was that if a decision was appealable, and had been appealed against, only the decision of the appellate tribunal would be reviewed. Akram v Immigration Appeal Tribunal 1990 S.C. 1, Stair Encyclopaedia of the Laws of Scotland vol.1, p.158, para.141, Wade & Forsyth on Administrative Law 8^th ed., p.520-522. Any deficiencies in Dr Brown's certificate could be cured by the appeal because the medical referee had the appropriate medical qualifications, was independent of the parties, and had the power to take new evidence and to make his own decision on the facts. There was no limitation on his powers. The appeal procedure therefore went beyond a limited form of review, and was sufficient to cure the defect in the procedure before Dr Brown. Reference was made to Calvin v Carr 1980 A.C. 574 and Lloyd v McMahon 1987 A.C. 625, Cooper v Secretary of State for Scotland 2000 S.L.T. 138.

[14] This case previously came before me for a First Hearing on 20 October 2000, when argument was confined to a plea of all parties not called, advanced on behalf of the respondent. The contention was that the Scottish Ministers should be sisted as respondents because the medical referee had been appointed by their statutory predecessor, the Secretary of State for Scotland. Alternatively, it was argued that the medical referee himself should have been cited as a respondent. I sustained the plea by interlocutor dated 1 December 2000 and ordered the petition to be served on the Scottish Ministers only. On 3 April 2001, on the unopposed motion of the Scottish Ministers, I granted leave to reclaim that interlocutor. I was informed that, at the hearing in the appeal before the First Division on 7 June 2001, counsel for the respondent was prevailed upon not to maintain his opposition to the appeal and their Lordships, without hearing argument, recalled the interlocutor of 1 December 2000, "in respect of agreement that the Scottish Ministers were not appropriate respondents in the case". No written opinions were issued

[14] I mention this because, as I have indicated, counsel for the respondent sought to argue that the prayer of the petition could not be granted without service on the medical referee as respondent. That argument had earlier been advanced as an alternative argument in support of the plea of all parties not called. I rejected the argument and it was not renewed before the First Division, whose interlocutor had the effect of repelling the plea of all parties not called in its entirety.

[15] It was not, in my opinion, in these circumstances, open to the respondent to renew the argument before me. In any event, I was informed that on service of the petition on him the medical referee took legal advice and chose not to enter appearance. That may well have been the correct course, since it has been recognised, for example in Immigration Appeal procedure, that it is not appropriate for a quasi judicial body to be represented as a party in review proceedings. It is at least arguable that the medical referee was acting in a quasi judicial capacity.

[16] I turn now to deal with Dr Brown's certificate. It is accepted that Dr Brown was unaware that the ground on which the petitioner had been required to retire was mental ill-health. In his ignorance of the true situation Dr Brown confined himself to carrying out a physical examination of the petitioner and declared him fit. The question which ought to have been referred to Dr Brown was whether the disablement on the ground of which the petitioner had been required to retire was the result of an injury received in the execution of his duty. Since Dr Brown was unaware of the nature of that disablement it follows that the appropriate question was never referred to him. Accordingly he was unable, through no fault of his own, to apply his mind to the appropriate question. His certificate, therefore, cannot stand.

[17] The question then arises whether its deficiencies can be cured by the appeal provisions of the Regulations. To answer that question it is necessary to examine the relevant provisions. Regulation H1.(4) provides that the decision of the selected medical practitioner (which is to be expressed in the form of a certificate) is final. Regulation H2.(2), however, allows an appeal against the selected medical practitioner's decision to be decided by a medical referee. Regulation H2.(3) sets out the way in which the referee is to go about his task. If he disagrees with any part of the selected medical practitioner's certificate he is to express, again in the form of a certificate, his decision "on any of the questions referred to the selected medical practitioner on which he disagrees with the latter's decision". His decision is to be final. The effect of Regulation H2.(3) is that if the medical referee does not disagree with the selected medical practitioner's decision in any way then the certificate of the selected medical practitioner stands and takes effect. Any decision of the medical referee only takes effect in the event that he disagrees with the selected medical practitioner and expresses that disagreement in a certificate. In this case the medical referee did not disagree with Dr Brown's decision and produced no certificate. Accordingly Dr Brown's certificate remains the operative document which governs the rights and obligations of the parties. In these circumstances it is Dr Brown's certificate which falls to be reduced.

[18] That is sufficient for the determination of this case, but, had I required to do so, I would have concluded that the medical referee misdirected himself in the following passage in his report.

[19] The question for Dr Brown and for the medical referee was whether the petitioner's disablement was the result of an injury received in the execution of duty. The appropriate test was set out by Lord Hamilton in the recent case of Phillips v Strathclyde Joint Police Board:

The question for Dr Brown, and for the medical referee did not involve any consideration as to whether the police authority was guilty of some default, failure or deliberate or vindictive action that could have been expected to have an adverse effect on the claimant. By introducing and having regard to that consideration the medical referee misdirected himself.

[20] As I understand it, the reason for the medical referee's decision was that the medical evidence before him was based solely on the testimony of the petitioner, and that the doctors whose reports he was shown had failed to consider the possibility that the petitioner was suffering from a depressive disorder in 1994 and 1995. In addition, he took the view that they had failed to have regard to the petitioner's reluctance to take anti-depressant medication and to his over-indulgence in alcohol in 1998. While the medical referee was, in my view, entitled, in the exercise of his professional judgment, to reject the doctors' conclusions on the ground that they had not considered every possibility, it seems to me that he nevertheless misdirected himself in proceeding on the view that any depressive disorder in 1994 and 1995 and the other factors referred to were inconsistent with the proposition that the petitioner's illness was caused by his work. The fact that he might have been suffering from a depressive disorder in 1994 and 1995 was not inconsistent with that proposition since, as the medical referee says, the earlier depression and stress were caused by "perceived problems at work and treatment by other officers". The other factors, the reluctance to continue with medication and the increased alcohol intake, occurred as a result of his depressive illness and were not, as I understand it, a factor in its cause, although they could have been relevant to its continuation. It seems to me that the medical referee confined himself to considering the narrow question as to whether specific aspects of the respondent's behaviour towards the petitioner in the context of the disciplinary proceedings caused the injury which resulted in his disablement. The question before him was a broader one than that. It was whether the injury or illness which caused the petitioner's disablement was caused in any way by the execution of his duty. In this regard also I consider that the medical referee misdirected himself.

[21] As I have indicated the medical referee's decision had no operative effect independent of Dr Brown's certificate and it is therefore inappropriate that it should be the subject of a decree of reduction. In these circumstances I shall pronounce a decree of reduction of the certificate of Dr Brown.